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BARBARA ANN GILL ORTELL v. COMMONWEALTH PENNSYLVANIA (01/12/89)

decided: January 12, 1989.

BARBARA ANN GILL ORTELL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, CRIME VICTIMS COMPENSATION BOARD, RESPONDENT



Appeal from the Order of the Crime Victims Compensation Board in the case of Re: Barbara Ann Gill Ortell, Victim, Claim No. 82-1219-B.

COUNSEL

Peter B. Foster, Pinskey & Foster, for petitioner.

Linda C. Barrett, for respondent.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Barry.

Author: Doyle

[ 122 Pa. Commw. Page 584]

This is an appeal*fn1 by Barbara Ann Gill Ortell (Claimant) from an order of the Crime Victims Compensation Board (Board) denying her claim for compensation for out-of-pocket losses stemming from a criminal attack upon her by one Albert West.

The Board found that, on June 24, 1982 at approximately 11:00 a.m., Claimant, then age thirty-six, became involved in an altercation with West, who was her landlord. During this altercation Claimant was pushed by West and fell, prompting her complaints of head and back pain. Prior to this incident Claimant and West had been engaged in a telephone conversation involving yelling and arguing. At the conclusion of the telephone call Claimant left her residence in an "angry" mood and walked approximately twenty-five feet (next door) to confront West. The argument then resumed and the above described altercation ensued.

[ 122 Pa. Commw. Page 585]

The Board denied Claimant's claim for compensation finding that she had acted unreasonably when she failed to avoid a physical confrontation and, hence, that her conduct contributed to her injury. It also determined that Claimant had not incurred out-of-pocket losses of $25,000.00 to $27,000.00 as she claimed. It noted particularly that she had provided no medical verification for her alleged losses, that her x-ray's revealed no serious injury, and that the only evidence of costs she submitted was in the form of "slips of paper torn from spiral notebooks and bearing handwritten names of persons who allegedly provided services and the amounts allegedly paid."*fn2 No cancelled checks or money orders were submitted.*fn3

Claimant has appealed the denial of compensation to this Court.*fn4

Where, as here, both parties have presented evidence our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether there has been a constitutional

[ 122 Pa. Commw. Page 586]

    violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987). On appeal Claimant presents three arguments which we shall examine seriatim. She contends first that the regulation which the Board used to disqualify her from receiving compensation is in conflict with the governing statute. It is, of course, well settled that an administrative agency's interpretation of its own regulation is controlling, and unless that interpretation is plainly erroneous or inconsistent with the regulation, or the regulation is inconsistent with the statute under which it is promulgated, the regulation ...


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